Posted
by
kdawson
on Sunday June 20, 2010 @12:48AM
from the if-you-don't-have-your-own-use-theirs dept.

An anonymous reader passes along a DMCA takedown notice directed at Google and authored by the British Phonographic Industry, Britain's equivalent of the RIAA. P2pnet identifies the BPI as the outfit that "contributed to the British government's Digital Economy bill, complete with its ACTA Three Strikes and you're Off The Net element, with hardly a murmur from the UK lamescream media." Are there any precedents for a UK trade organization attempting to use an American law to force an American company to take down links to UK-copyrighted material?

I took a quick scan and didn't see any URLs that are clearly hosted by Google.... so it looks like
the notice is directed to the wrong place.

What did look scarey is including a bunch of queries that would evidently produce some/all of the
content they object too.
It's as if they want to claim that Google's ability to find such
stuff makes them liable... so that they should then work with the UK's RIAA to block searches for those
bits of material... ugh!!...

If BP is fined $10bn (as is the current estimate), it doesn't come out of the CEO's paycheck. BP is a public company (owned by shareholders), and when BP pays a fine, it's money that the shareholders lose (because the value of the company is lowered, and therefore its stock price).

You're talking about criminal responsibility when you speak of "jail time". Shareholders are protected from personal liability (beyond their investment in the company). The lowest grade of a corporation is LLC "limited-liability corporation", and S-Corps are just more expensive/stringent versions of the same. This means that if BP declares bankruptcy, creditors cannot chase after its shareholders beyond their stake in the company. That is, the stock price goes to $0, wiping out all the investment value shareholders have in the company, but creditors cannot go after shareholders beyond that.

Corporations cannot be jailed, so criminal charges against them are a lot like civil charges, meaning only a monetary punishment. The plaintiff would have to file separate grievances addressing individual employees by name for individuals to be jailed. A judgment against a company does not translate into a judgment against any individuals; separate judgments on the individuals are needed.

Regarding bankruptcy, wholly-owned subsidiaries of a larger corporation cannot always insulate the larger corporation from debt obligations. That is, if someone sues subsidiary XYZ of Google for $10 billion, and wins, then Google cannot merely make XYZ declare bankruptcy and continue on with itself protected from creditors. Google is not plural, so I don't know what you mean by "This does not mean THEY direct its day to day operation". If you mean the Sergey Brin and staff, sure, _they_ don't, but then again, _they_ are not liable anyways. Google is singular in the eyes of the law; the law couldn't care less who the CEO is or what he does with is time. If XYZ is a wholly owned subsidiary of Google, and XYZ is liable for $10 bn, and cannot meet its obligation to pay, creditors are entitled to chase after Google. Can creditors chase after Sergey Brin? No. Creditors chase after Google and property owned by Google. This is ultimately paid for by shareholders (of which Sergey Brin is one).

I am not a lawyer, and this is a discussion, not legal advice. See a competent solicitor/attorney qualified in your jurisdiction if you need one.

Firstly, yes, they can be allowed to take down links or search results under 17 USC 512(d). (c) is for hosting the content, (d) is for linking to it or referring to an online location for it in an index or directory. (If you recall, this is one reason the DMCA was thought of as so draconian; they can not only take down the content, they can take down secondary links.)

Secondly, since Google is subject to US law, the proper jurisdiction is the US state in which Google is located. (There is, however, a school of thought that says that since people in any jurisdiction can access the internet, you can shop around for any jurisdiction that is convenient, say, the one that you are in, to raise an action within: i.e. "people on the internet in New Jersey can access your site" -> "you do business in New Jersey" -> "you are under the jurisdiction of New Jersey". Clearly people have tried that, but with mixed success; it seems to work with states, and friendly jurisdictions where there are equivalent laws, but people in the US trying to raise action against, say, a certain famous site formerly located in Sweden were repeatedly and proudly told to push off. Nevertheless, there has been some success in this area, which is disappointing because the reverse reasoning would seem to allow someone in Thailand or China or Burma issuing takedowns under censorship laws...)

Thirdly, we have the same provisions here in the UK under the Copyright, Designs and Patents Act, amended via Statutory Instrument as a result of the enactment of the European Union Copyright Directive. The takedown provisions are virtually identical to the US ones; a valid DMCA takedown is valid here, and a valid takedown constructed according to our law contains all the elements of a valid DMCA takedown. (There are, of course, some differences. Under the DMCA a service provider has to keep it down for a certain period of time even after a counter-notification is issued, for example, although in practice they rarely do, as that seems to be regarded as a mistake in the law.)

There's really nothing stopping cross-jurisdictional takedowns from being issued. It's valid where it's been served, and as a bonus it's even valid where it's been sent from.

So yes, Google would have to comply (and do, as a matter of course, in a slightly subversive way that thankfully allows for some oversight - something sorely missing from the takedown regime - by taking the results down, indicating that results have been removed due to a request, uploading the specific request to Chilling Effects, and linking to it).

The problem is that, AFAIK, the DMCA not only forces you to comply (I suppose if it is really illegal, you get into trouble if you don't comply, instead of waiting for fair judgement from a court of law), but it also considers a link to something illegal to be illegal by itself.

They can also put the link back up if they receive a counter notification.

The point of this is that the counter notification must agree to US jurisdiction - so sites outside the US must agree to US jurisdiction or they can be removed from US search engines by an allegation of copyright violation.

As all the main search engines are American, and most sites need search engines to bring them readers, this effectively gives the US global jurisdiction on copyright.

The/. editor is also talking rubbish by saying it is "UK copyrighted material". It is also covered by US copyright, which is what counts in this case.